The Pentagon Papers
In 1967, several years after the United States had entered the conflict in Vietnam, Defense Secretary Robert McNamara assembled a team of analysts -- many from the RAND Corporation -- to compile a report on decisions made about involvement in Vietnam by the U.S. government from the early 1940s through March 1968. Thirty-six men, including Daniel Ellsberg, worked on the project. McNamara's motivation in commissioning this project remains a subject of controversy. He insisted that he authorized the study to preserve for scholars the government documents that chronicled key decisions that had resulted in U.S. involvement in an Asian land war. According to Morton Halperin, one of the two directors of the study, "McNamara had a sense then that this was a tragic blunder, that we were in the middle of a catastrophe and that it was important to try to understand how we had gotten into that catastrophe."
When the study was complete, a copy of it was stored at the RAND Corporation. As a RAND employee, Ellsberg was eventually granted access to the study, and by September 1969 he had read it in its entirety. It dramatically changed his understanding of the war. Before reading the study, Ellsberg had assumed the presidents involved had perhaps been misled or poorly advised on the prospects in Vietnam. After reading the study, he came to several conclusions: 1) every president since and including Harry Truman in the late 1940s had been advised by some that the war was unwinnable; 2) each of four presidents, Truman through Johnson, escalated the war mainly to save face, so as not to become known as the president who had lost Vietnam to the Communists; and 3) each president lied to the American people about both his escalation plans and the prospects for military success.
After seeing the disparities between what the public was being told and what was actually going on behind closed government doors, Ellsberg became sickened by his own involvement in justifying the war. In 1969, with the help of former RAND colleague Anthony Russo and at times his own two children, Ellsberg began photocopying the 7,000-page document with the goal to disclose it publicly in order to stop what he had concluded was "murder, mass murder."
Ellsberg delivered copies of the study to antiwar Congressmen, including William Fulbright, George McGovern and Pete McCloskey, but none disclosed its contents within Congress or to the public, as Ellsberg had hoped they would. Ellsberg leaked copies of the study to New York Times reporter Neil Sheehan in March 1971. Sheehan convinced his editors at the paper that their readers had the right to know this heretofore secret information. The first articles on the top-secret study, which included excerpts from it, appeared in the paper on June 13, 1971, and within days the study became known as "the Pentagon Papers."
Ellsberg also sent a copy of the papers to Senator Mike Gravel of Alaska, a Democrat, who planned to read from them during a filibuster of a bill that would extend the draft. Prevented from filibustering, he instead read the papers during a late-night one-person meeting of the subcommittee he chaired, thereby entering the papers into the public record. He later found a small publisher, the Beacon Press in Boston, to print them. The four-volume set was titled The Pentagon Papers, Gravel Edition.
» The New York Times. "Times Topics: Pentagon Papers."
» Beacon Press. "Beacon Press and the Pentagon Papers."
» Falk, Richard A. "Demystifying Iraq?" The New Centennial Review 5, no. 1 (Spring 2005).
» University of Southern California. "Top Secret: The Battle for the Pentagon Papers."
New York Times Co. v. United States
In 1971, Daniel Ellsberg leaked a copy of the 7,000-page Pentagon Papers to New York Times reporter Neil Sheehan. Sheehan and his fellow New York Times reporter Hedrick Smith spent weeks studying the documents and writing articles about them. On June 13, 1971, The New York Times began to publish excerpts of the documents. President Nixon argued that the entire report was top secret, and on June 15, the federal government asked the court for an injunction, claiming for the first time in American history the right to prevent communications from reaching the public. The government argued that to continue publishing the Pentagon Papers would pose "a grave and immediate danger to the security of the United States." The government won a temporary injunction from the courts to stop The New York Times from publishing excerpts from the Pentagon Papers.
More than a dozen other newspapers, including The Washington Post, also received copies of the Pentagon Papers and published excerpts. The Washington Post and two other papers were also enjoined, but, as one lawyer said, trying to stop publication was like "herding bees," and during the last two weeks of June, newspaper after newspaper published articles about and excerpts from the top-secret report. On June 30, the Supreme Court reversed the injunctions against The New York Times and The Washington Post, ruling six to three that publication of the documents was not a threat to national security, but rather was in the public interest and protected by the First Amendment. Justice Hugo Black wrote, "The press was to serve the governed, not the governors."
The case marked the first time in American history that the U.S. government had tried to restrain the press in the name of national security; the Supreme Court's decision re-emphasized the right and duty of the press to keep a watchful eye on government.
» The New York Times. "Times Topics: Pentagon Papers."
» Academy of Achievement. "Neil Sheehan."
The Bill of Rights is comprised of 10 amendments that protect Americans from government interference, but even today, arguments about the meaning of and protections offered by the First Amendment are the subject of much controversy.
The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
First Amendment rights get complicated when one party's right interferes with another's, or when exercise of a right such as freedom of speech or of the press might threaten another party's safety or well-being. In the Pentagon Papers case, the government argued that publication of the classified documents threatened national security.
Several historical cases have challenged the balance between First Amendment rights and the security of the nation, including cases related to the promotion of Communism, the restriction of rights of government employees, interference with war efforts and the admission or exclusion of certain non-U.S. citizens.
» First Amendment Center. "About the First Amendment."
» Cornell University Law School. "CRS Annotated Constitution."
The Ellsberg-Russo Trial
On June 28, 1971, Daniel Ellsberg, who had gone into hiding after distributing copies of the Pentagon Papers to newspapers, surrendered in Boston to face criminal charges. Under the Espionage Act, Ellsberg was charged with theft and unauthorized possession of classified documents.
Anthony Russo, a former RAND colleague of Ellsberg's who had helped photocopy the documents and urged Ellsberg to distribute them, was subpoenaed in August 1971 and imprisoned for six weeks after refusing to testify against Ellsberg before a grand jury. In December 1971, a second indictment was issued against the two men, listing them as co-conspirators in the matter. Ellsberg faced five counts of theft and six of violations of the Espionage Act, for a maximum total of 115 years; Russo faced one count of theft and two of violating the Espionage Act, for a maximum total of 35 years.
Their trial began in Los Angeles (where the photocopying had taken place) on January 3, 1973. Five days later, the Watergate burglary trial commenced in Washington, D.C. The Los Angeles trial continued for more than four months and included testimony by both Russo and Ellsberg. Until the final days of the trial, reporters could not guess how the verdict was likely to go. Then, in late April, Watergate prosecutor Earl Silbert submitted a memo that revealed that two members of a special investigations unit known as "the plumbers" that had been created by President Nixon -- G. Gordon Liddy and E. Howard Hunt (who had just been convicted in the Watergate burglary trial) -- had burglarized the offices of Lewis Fielding, Daniel Ellsberg's psychoanalyst, in search of files that could be used to discredit Ellsberg. (The Fielding burglary had occurred nine months before the Watergate burglary.)
Days later, in early May, the judge in the Los Angeles trial, William Byrne, revealed that John Ehrlichman -- one of Nixon's top aides -- had offered Byrne the job of director of the F.B.I. while Byrne was presiding over the Ellsberg-Russo trial. Then, on May 10, it came to light that the F.B.I. had secretly and illegally recorded conversations between Ellsberg and Morton Halperin, who had supervised the Pentagon Papers study. The government claimed it could not find any records pertinent to the wiretapping.
Byrne stated to the court, "The totality of the circumstances of this case, which I have only briefly sketched, offend a sense of justice. The bizarre events have incurably infected the prosecution of this case." On May 11, the judge declared a mistrial and the charges against both Ellsberg and Russo were dropped.
John Dean -- the former White House counsel who revealed to Watergate investigators the existence of the Fielding break-in -- maintains that "it was the cover-up of the Ellsberg break-in that concerned the White House" and that "the seeds of all of Watergate occur in the Pentagon Papers." He makes the point that the Watergate break-in was never tied directly to the White House (only to the presidential re-election committee), but that in contrast, the Fielding burglary had been initiated by the White House.
On March 21, 1973, during the conversation in which Dean famously reported telling Nixon, "There is a cancer growing on the Presidency," Dean revealed to the president that Hunt was threatening blackmail, quoting Hunt as saying, "I will bring John Ehrlichman down to his knees . . . [he'll] never survive it" (referring to what Nixon termed "that Ellsberg business.") Dean went on to tell Nixon the blackmail threat might cost up to $1 million. Nixon responded by assuring Dean, "You [one] could get a million dollars. You could get it in cash. I know where it could be gotten." It was revelation of the Fielding break-in, Dean asserts, that Nixon feared. And indeed, when the House Judiciary Committee, in 1974, adopted three articles of impeachment against Nixon, two of them directly concerned the Fielding break-in. After that, Nixon had no choice but to resign.
» Daniel Ellsberg's Website. "Biography."
» Daniel Ellsberg's Website. "Extended Biography."
» "Judge William Byrne; Ended Trial Over Pentagon Papers," Washington Post, Jan. 14, 2006.
» "Top Secret: The Battle for the Pentagon Papers." The University of Southern California.
The RAND Corporation
The RAND Corporation (the name stands for "research and development"), self-defined as a "nonprofit institution that helps improve policy and decision-making through research and analysis," was formed in 1948 in response to a need identified during World War II to improve military planning by drawing on the expertise of civilian researchers and scientists. Thomas Schelling, an early and prominent RAND employee, says in the film, "The atomic bomb had changed so much. And the military knew that they needed fresh thinking."
RAND became the favored think tank of the Air Force in particular, and the U.S. Department of Defense in general. At the time of Ellsberg's employment at the RAND Corporation, it played an integral role in providing information and strategic thinking to military decision-makers.
» RAND Corporation. "History and Mission."